Li Hua Bai v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3928
LI HUA BAI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A094-800-769)
Immigration Judge: Honorable Margaret R. Reichenberg
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 23, 2009
Before: AMBRO, CHAGARES and ALDISERT, Circuit Judges
(Opinion Filed December 28, 2009)
OPINION
PER CURIAM
Li Hua Bai petitions for review of the Board of Immigration Appeals’ (“BIA”)

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final order of removal. We will grant her petition and remand for further proceedings.
I.
Bai, a citizen of China, entered the United States in June 2006 without being
admitted or paroled. The Government later instituted removal proceedings on that basis.
Bai concedes removability, but seeks asylum, statutory withholding of removal and relief
under the Convention Against Torture. She claims to have suffered mistreatment in the
past and fears mistreatment in the future on account of her membership in a Christian
church that is not authorized by the Chinese government.
Before an Immigration Judge (“IJ”), Bai testified that she converted to Christianity
in 2003 while living in the Congo. Upon her return to China, she joined a government-
approved church, but left after concluding that it did not “teach the Bible properly.” She
then joined an unauthorized “home” church with approximately seven members. Weekly
services rotated among the members’ houses and eventually were held at Bai’s house,
where Bai lived with her mother. Bai testified that, during a service on May 22, 2005,
Chinese police burst into her house, broke tables and tore up Bibles. They arrested Bai,
but let everyone else go after taking their names and addresses.
Police then interrogated Bai at the police station. During the interrogation, they
kicked her off her chair, then kicked her and hit her with the chair while she was on the
ground. Afterwards, they took her to prison, where authorities kept her in a cramped
space and alternately denied her food and put it in a toilet before giving it to her. Finally,

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In her oral decision, the IJ described Bai’s testimony merely as “consistent,” (IJ Dec.1
at 19, 23-24), but clarified following her decision that she found Bai “sympathetic” and
“purposely didn’t make any negative credibility finding” in order to entitle Bai to a
presumption of credibility before the BIA (A.179). See 8 U.S.C. § 1158(b)(1)(B)(iii).
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after ten days in prison, Bai agreed to sign an affidavit of some kind and the authorities
released her. Authorities required her to check in at the police station once per week,
which Bai did until leaving the country. She did not participate in church activities
during that time, but she joined a church shortly after arriving in the United States. In
addition to her testimony, Bai presented the 2005 Profile of Asylum Claims and Country
Conditions, which describes the Chinese government’s suppression of “underground”
churches. (A.184-86.) She also presented the testimony of and a letter from her current
minister, though that evidence was limited to Bai’s practice of Christianity since arriving
in this country.
The IJ appears to have found Bai’s testimony credible, as we will assume it to be
for purposes of review. The IJ denied relief, however, on the ground that Bai failed to1
corroborate her claims. In particular, the IJ explained that Bai had not submitted any
letters or statements from her mother, her Chinese minister, or her fellow Chinese church
members to corroborate her practice of Christianity in China or the break-up of the church
meeting and her arrest. Bai explained that she asked family members to write letters on
her behalf, but that they were afraid to do so because the Chinese government monitors
the mail. The IJ rejected this explanation on the sole basis that Bai presented no proof

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that Chinese authorities open mail sent from China.
On appeal, Bai requested that the BIA consider the 2006 Country Report on
Human Rights Practices prepared by the United States Department of State. That report
states in relevant part: “During the year authorities monitored telephone conversations,
facsimile transmissions, e-mail, text messaging, and Internet communications.
Authorities also opened and censored domestic and international mail.” (A.38.) The BIA
refused to consider the report, stating that it “may not consider evidence presented for the
first time on appeal[.]” (BIA Dec. at 1.) The BIA also agreed with the IJ that Bai failed
to carry her burden of proof because she “failed to present reasonably available evidence
to support the material aspects of her claim.” (Id. at 2.) Bai petitions for review.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252. “Because the IJ’s corroboration
discussion and determinations are affirmed and partially reiterated in the BIA’s decision,
we review them along with the BIA’s decision.” Sandie v. Att’y Gen., 562 F.3d 246, 250
(3d Cir. 2009). In doing so, we review factual findings for substantial evidence and may
not disturb them “‘unless any reasonable adjudicator would be compelled to conclude to
the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). We exercise plenary review over
conclusions of law, subject to established principles of deference on agency review. See
Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 231 (3d Cir. 2008). This case is governed
by the standards set forth in the REAL ID Act because Bai filed her petition after its

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The REAL ID Act provides in relevant part: “Where the trier of fact determines that2
the applicant should provide evidence that corroborates otherwise credible testimony,
such evidence must be provided unless the applicant does not have the evidence and
cannot reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). We have not yet
addressed this provision in a precedential opinion, but the BIA and other Courts of
Appeals have held that it essentially codifies the BIA’s pre-REAL ID Act standards for
requiring corroboration. See, e.g., Liu v. Holder, 575 F.3d 193, 197 (2d Cir. 2009);
Rapheal v. Mukasey, 533 F.3d 521, 527 (7th Cir. 2008); In re J-Y-C-, 24 I. & N. Dec.
260, 263 (BIA 2007). At least one other Court of Appeals has concluded that this
provision “enhance[s] the evidentiary requirements for obtaining asylum.” Parussimova
v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009). We need not address that issue because
our disposition would be the same even if the REAL ID Act does nothing more than
codify preexisting law on this point.
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effective date of May 11, 2005. See Sandie, 562 F.3d at 252 n.2.2
Bai raises three arguments. First, she asserts in conclusory fashion that the BIA
erred in requiring corroboration because her credible testimony by itself was sufficient to
carry her burden of proof. It is true that credible testimony alone may be sufficient to
carry an applicant’s burden of proof, whether under the REAL ID Act or prior law. See 8
U.S.C. § 1158(b)(1)(B); Sandie, 562 F.3d at 252. Even before the REAL ID Act,
however, “credible testimony alone [was] not always sufficient to meet the burden of
proof.” Sandie, 562 F.3d at 252. Instead, applicants could be required to “provide
reliable evidence to corroborate testimony when it [was] reasonable to expect
corroborating evidence and there [was] no satisfactory explanation for its absence.” Id.
In addition, “[i]t [was] reasonable to expect corroboration for testimony that is central to
an applicant’s claim and easily subject to verification.” Id. Thus, even under pre-REAL
ID Act standards, the IJ was well within her rights to require Bai to provide reasonably

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Bai does not contest that the corroboration the IJ sought is material to her claims and3
available to her. She also does not argue that the IJ failed to conduct the necessary three-
part inquiry before requiring corroboration, and our review of the record confirms that the
IJ properly engaged in that inquiry. See Sandie, 562 F.3d at 252-53.
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available corroboration of the material aspects of her claim. Bai does not argue that the
REAL ID Act has altered this framework in her favor, and we see no indication that it
has. See In re J-Y-C-, 24 I. & N. Dec. at 265 (claim of Chinese underground church
member insufficient under the REAL ID Act where, inter alia, he failed to “submit an
affidavit from anyone who could corroborate his role in home churches or the practice of
Christianity in general” or “statements from [his] relatives in China”).3
Second, Bai argues that the BIA should have taken “judicial notice” of the 2006
country report she submitted on appeal, which she offered in support of her explanation
for failing to provide corroborating evidence. We understand Bai to be referring to the
concept of official or administrative notice, which allows the BIA to take notice of certain
materials not appearing of record. See Zubeda v. Ashcroft, 333 F.3d 463, 479 (3d Cir.
2003); 8 C.F.R. § 1003.1(d)(3)(iv). We agree that this issue requires remand. In
declining to consider the 2006 country report, the BIA wrote that “we may not consider
evidence presented for the first time on appeal[.]” (BIA Dec. at 1.) While that is true as a
general matter, we recently reiterated that the applicable regulation allows the BIA to take
administrative notice of “‘the contents of official documents such as country condition
reports prepared by the Department of State.’” Sheriff v. Att’y Gen., — F.3d —, No. 08-

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As support for its statement, the BIA cited In re Fedorenko, 19 I. & N. Dec. 57, 744
(BIA 1984). The newly presented evidence at issue there, however, was a letter from a
doctor peculiar to the petitioner’s own case, not an official document potentially subject
to administrative notice. See id. at 73-74.
The BIA also did not specifically address Bai’s explanation for failing to provide5
corroborating evidence—i.e., that her family members are afraid to send it because
Chinese authorities monitor the mail. We express no opinion on the adequacy of that
explanation, but the BIA should specifically address it if it decides to take administrative
notice of the 2006 country report. The BIA noted that, regardless of Bai’s explanation for
failing to provide corroborating evidence regarding her experiences in China, she offered
no explanation for failing to corroborate her practice of Christianity in the Congo. We
cannot say from the BIA’s decision that such a failing, standing alone, would have
resulted in the dismissal of her appeal.
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1645, 2009 WL 4042936, at *6 (3d Cir. Nov. 24, 2009) (quoting 67 Fed. Reg. 54878,
54891 (Aug. 26, 2002)). In this case, the BIA did not acknowledge its discretion to take4
administrative notice of the 2006 country report or explain whether or why it was
declining to exercise that discretion. Thus, we will remand for the BIA to consider in the
first instance whether to take administrative notice of the 2006 country report.5
Finally, Bai asserts that the IJ and BIA denied her due process by “ignoring” her
testimony and evidence. Bai, however, does not specify what evidence she believes that
the IJ and BIA ignored, and our review of the record reveals no material evidence that
they overlooked.
Accordingly, we will grant Bai’s petition for review and remand for the BIA to
consider whether to take administrative notice of the 2006 country report and, if
necessary, specifically address Bai’s explanation for failing to corroborate her credible
testimony.

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